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Annual 
Report 

1989 




Workers' Compensation 

Appeals Tribunal 
Tribunal d'appel 

des accidents du travail 




Ontario 



Digitized by the Internet Archive 
in 2013 



http://archive.org/details/annualreport1989onta 



ANNUAL REPORT 



1989 



505 University Avenue 

7th Floor 

Toronto, ON 

M5G 1X4 

(41 6) 598-4638 FAX: (416) 965-51 34 

ISBN: 0833-5451 

© Ontario Workers' Compensation Appeals Tribunal, 1 990 



TABLE OF CONTENTS 



INTRODUCTION 1 

THE CHAIRMAN'S REPORT 2 

THE TRIBUNAL'S PERFORMANCE: CHAIRMAN'S ASSESSMENT 2 

BILL 1 62 AMENDMENTS: TRIBUNAL IMPLICATIONS 3 

SECTION 86n AND THE FINAL-SAY ISSUE 4 

HIGHLIGHTS OF THE 1 989 CASE ISSUES 5 

Pension Assessments 5 

Pension Supplements 6 

Transitional Supplement Provisions in BilL 1 62 6 

Earnings Base 7 

Occupational Disease 7 

Occupational Stress 7 

Chronic Pain and Fibromyalgia 8 

The Relationship with the Ombudsman 9 

The Compensable, Work-injury Relationship 9 

Other 10 

JUDICIAL REVIEW ACTIVITY 10 

THE TRIBUNAL REPORT 13 

VICE-CHAIRMEN, MEMBERS AND STAFF 13 

THE APPEALS PROCESS . 13 

Receipt of Appeals & Intake Processing 1 3 

Pre-hearing Processing 14 

Scheduling of Hearings 15 

Hearings 16 

Post-hearing Processing 18 

Decision Writing 19 

Decision Release 19 

INFORMATION DEPARTMENT 19 

Library 19 

Publications 20 

PAY EQUITY 20 

FINANCIAL MATTERS 21 



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APPENDICES 



APPENDIX A 

STATEMENT OF MISSION, COALS AND OBJECTIVES 24 

APPENDIX B 

VICE-CHAIRMEN AND MEMBERS ACTIVE IN 1989 31 



CHARTS AND GRAPHS 



TREND ANALYSIS - INCOMING CASELOAD VS TOTAL CASE INVENTORY 3 

THE APPEALS PROCESS 12 

INCOMING CASELOAD BY TYPE FOR 1989 14 

1989 INCOMING CASELOAD BY TYPE 15 

REPRESENTATION PROFILE FOR DECISIONS RELEASED IN 1 989 16 

DISPOSITION OF CASES IN 1989 17 

COMPARATIVE CASELOAD STATISTICS 18 

STATEMENT OF EXPENDITURES 22 



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INTRODUCTION 



X he Workers' Compensation Appeals Tribunal is a tripartite tribunal established 
in 1985 to hear appeals from the decisions of the Ontario Workers' Compensation 
Board. It is a separate and self-contained adjudicative institution, independent of the 
Board. 

This report is the Tribunal Chairman's and the Tribunal's annual report to the Minis- 
ter of Labour and to the Tribunal's various constituencies. It describes the Tribunal's 
operational experience during the reporting period and covers particular matters 
which seem likely to be of special interest or concern to the Minister or to one or 
more of the Tribunal's constituencies. The reporting period for this report is the 1989 
calendar year. 

This is the first annual report to be titled "Annual Report". Its three predecessors, dis- 
tinctively titled because of their special role in recording the Tribunal's formative 
years, were the "First Report", the "Second Report" and the "Third Report". They 
cover respectively the periods of October 1, 1985, to September 30, 1986; October 1, 
1986, to September 30, 1987; and the fifteen month period from October 1, 1987, to 
December 31, 1988. 

This Annual Report comprises, in effect, two reports: The Chairman's Report and the 
Tribunal Report. The Chairman's Report reflects the personal observations, views 
and opinions of the Chairman. The Tribunal Report covers the Tribunal's activities 
and financial affairs, and developments in its administrative policy and process. 



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THE 
CHAIRMAN'S 



REPORT 



THE TRIBUNAL'S PERFORMANCE : 
CHAIRMAN'S ASSESSMENT 

_L he Tribunal's Statement of Mission, Goals and Commitments adopted by the 
Tribunal in 1988 and reproduced as Appendix A to the Third Report and again as 
Appendix A to this Report continues to represent the criteria of performance which 
the Tribunal believes to be appropriate. I am satisfied that throughout 1989 the 
Tribunal successfully performed its Mission and made significant strides towards 
meeting its Goals, while continuing to be faithful to its Commitments. 

The Tribunal's production goal is stated in the Statement of Mission, Goals and Com- 
mitments as: "...a total case turnaround time from notice of appeal or application to 
final disposition that averages four months, and in individual cases, unless they are 
of unusual complexity or difficulty, does not exceed six months." 

The turnaround times are steadily improving. The reporting year saw the implemen- 
tation of the restructuring approved at the end of 1988 and described in the Third Re- 
port together with other re-organization and process adjustment devoted particularly 
to decreasing the time the Tribunal spends, on average, during the pre-hearing pre- 
paration of each case. These efforts were complicated by personnel and administra- 
tive changes in the Tribunal Counsel Office and in Intake, and the full benefit was 
only beginning to be felt at the end of the year. 

Nevertheless, in 1989 about 200 entitlement cases were completed from start to finish 
within roughly the four-month period, and the average turnaround time for deci- 
sions released in 1989 is substantially improved. 

The continuing improvement in the Tribunal's overall production times may be seen 
in broad terms from the graph on the next page showing for each year since 1987 the 
total of new cases received during the year and the total case inventory as of the end 
of the year. The graph shows that the total case inventory at the end of 1989 is about 
60 per cent below what it was at the end of 1987. Since the number of new cases re- 
ceived each year has remained relatively constant, this reduction is mainly reflective 
of improvements in the Tribunal's efficiency. 

Out-of-Toronto cases present special difficulties as far as turnaround times are con- 
cerned by virtue of the impracticability of every-day scheduling of out-of-Toronto 
hearings and, as we now appreciate, limitations in the advocacy resources available 
in out-of-Toronto locations. As will appear from the report on the Tribunal's 
scheduling activities, we continue to experiment with various different strategies for 
improving the out-of-Toronto turnaround experience. 

Whether with existing resources, and without sacrificing the quality of decision- 
making, it will in the end prove, in fact, to be possible to achieve a four-month, over- 
all average turnaround time still remains unclear. We will be in a better position to 
answer that question by the end of 1990. 

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TREND ANALYSIS 



Incoming Caseload vs Total Case Inventory 



3 ~ 

3 ! 

3 

1 ° 




1989 



Incoming Caseload 



Total Case Inventory 



The Tribunal's 1989 turnaround performance is to be assessed in the context of a year 
in which the Tribunal received 1,600 and disposed of 2,000 appeals or other types of 
applications including 1,125 by fully reasoned, written decision reached after full 
hearings. 

I am especially pleased, as well, to be able to report that the Tribunal's turnaround 
performance in the particularly important area of decision-writing has consolidated 
the major 1988 improvement and produced even better decision- writing times in 
1989. The details in this respect will be found in the Tribunal Report dealing with the 
Appeals Process. 

BILL 162 AMENDMENTS: 
TRIBUNAL IMPLICATIONS 

In assessing the Tribunal's performance and gauging its ability to meet and sustain 
adequate standards of production, it is naturally necessary in this 1989 Annual Re- 
port to take account of the Bill 162 amendments to the Workers' Compensation Act 
enacted just as 1989 came to a close. The reliability of my previous observations con- 
cerning the Tribunal's capacities are, of course, implicitly conditional upon the addi- 
tional resources that will be needed to deal with what seems likely to be substantial 
additional burdens. 

It is impossible at this point in time to estimate with confidence the full extent of Bill 
162's ultimate impact on the Tribunal's workload. However, there can be little doubt 
that the impact will be substantial. 

To begin with, appeals under the return-to-work part of the new legislation present a 
completely new jurisdiction for the Tribunal in which, ultimately, the number of ap- 
peals seems potentially very high. And while at this stage, the workload implications 
of the introduction of the wage-loss pension provisions are not as clear — these provi- 
sions replace existing provisions and from a workload perspective are likely to cut 
both ways — it is reasonable to expect that those changes too will ultimately produce 
a substantial net increase in the Tribunal's workload. 

The four separate decisions that will now be required in every case of permanent par- 
tial disability seems likely, for instance, to be the source of significant increase in the 
number of appeals per case overall. I refer to the non-economic lump sum determina- 
tion, and the first, second and final decisions on the wage loss, each of which is ap- 



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pealable. Furthermore, the value of what is at stake in individual appeals has been in- 
creased on average, since, under a wage-loss system, a higher proportion of appeals 
may be expected to at least potentially involve claims for full pensions. Accordingly, 
it may be anticipated that a higher proportion of claims rejected by the WCB's Hear- 
ings Officers will now be appealed. 

It is also clear that the Tribunal will have to respond particularly quickly to the Bill 
162 cases. This need is especially evident with respect to appeals in the new right-to- 
return-to-work cases, but it will also be important in the first round of appeals under 
the new wage-loss system for compensating permanent partial disabilities. The 
orderly development of that new system will depend on expeditious handling of the 
interpretation issues in the early cases. 

The strategy the Tribunal has adopted for dealing with what Bill 162 will send its 
way, is to lay the groundwork in the next few months to accommodate a rapid 20- 
per-cent increase in the Tribunal's resources as soon as the first wave of Bill 162 cases 
begins to take shape. We propose to then work with those resources until we can 
make a realistic assessment of resource needs based on the developing experience. 

SECTION 86n AND THE 
FINAL-SAY ISSUE 

As was noted in the Third Report, as of the end of 1988 the key issue as to the ulti- 
mate effect of the WCB Board of Directors' powers under section 86n of the Act had 
yet to be addressed. 

Decision No. 42/89 (1989), 12 W.C.A.T.R. 85, is the first decision in which the Tribunal 
was called upon to consider the final-say issue. In that case, the outcome depended 
on whether or not the Tribunal followed the Board of Directors' decision in its sec- 
tion 86n review of Decision No. 72 (1986), 2 W.C.A.T.R. 28. (I will hereafter refer to a 
Board of Directors' 86n decision as an "86n review decision".) The issues of policy 
and general law dealt with in that review decision were the interpretation of the 
statutory definition of "accident" and the applicability of the section 3(3) presump- 
tion. (This is the only 86n review decision to have issued by the end of 1989.) 

The specific question for the Decision No. 42/89 Panel was the effect on subsequent 
Tribunal decisions of a Board of Directors' decision in an 86n review of a prior 
Tribunal decision. However, in considering that question, the 42/89 Panel felt that it 
was also important to first consider the effect of such a decision in the case in which 
it is made. 

In a majority decision, the Tribunal indicated in Decision No. 42/89 that as long as a 
Board of Directors' 86n review decision was properly authorized by the terms of sec- 
tion 86n and was not beyond the Board's jurisdiction by reason of being patently un- 
reasonable, it was by law binding on the Tribunal in the case in which it was made. 
The 42/89 Panel decided, however, that an 86n review decision in one case was not 
binding in subsequent cases. In subsequent cases, the Tribunal was obliged to treat 
such decisions with deference and to follow them unless there were very compelling 
reasons not to do so, but it was not bound by the decision. 

In Decision No. 42/89 itself, the Tribunal concluded that, in respect of the definition of 
accident and its impact on the applicability of the presumption clause, the Board of 
Directors' review of Decision No. 72 and the Tribunal's Decision No. 72 itself were both 
so clearly wrong, to such substantial effect, that notwithstanding the deference intrin- 
sically owed to an 86n review decision it was the Tribunal's duty in this case not to 
follow either decision. 



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The question of whether or not to subject Decision No. 42/89 to a section 86n review 
was considered by the Board of Directors at its meeting on November 10, 1989. At 
that meeting, the Directors decided not to review the decision. For the time being, 
and pending the receipt of further decisions from the Tribunal on these issues, the 
WCB's staff were directed to implement the Tribunal's order in Decision No. 42/89, 
but to continue to administer the definition of accident and the applicability of the 
presumption clause in accordance with the Board of Directors' decision in its review 
of Decision No. 72. 

The Directors also directed the Board's staff to conduct a general review of the 
Board's policies concerning the determination of entitlement to benefits in respect of 
workers' deaths from unknown or uncertain causes in employment circumstances — 
the problem with which the Tribunal had been faced in Decision No. 42/89. 

The effect of the Board's decision not to review Decision No. 42/89 is that for the time 
being the Board's adjudicators will continue to apply the interpretation of accident 
approved in the Directors' review of Decision No. 72, while the Tribunal may well 
follow the interpretation in Decision No. 42/89. Fortunately, the nature of the issue is 
such that not many cases will in fact be affected by this difference, but it is not a situa- 
tion that should continue indefinitely. 

It is my own view that the Board of Directors is right to confine the cumbersome and 
onerous 86n procedure to the business of resolving issues of major importance be- 
tween the Board and the Tribunal only at the point where a full understanding of the 
nature and dimension of the issue has developed and the possibilities of reconciling 
or eliminating the conflict between the Tribunal and the WCB by other means or 
through other processes have been exhausted. It is that view of 86n which I take to be 
reflected in the Board of Directors' decision not to review Decision No. 42/89 at this 
time. 

It should be noted, of course, that the decision not to review Decision No. 42/89 has 
also postponed the occasion for the Directors themselves to decide whether in their 
opinion section 86n ultimately gives the final say to the Tribunal or to the Board of 
Directors. 

HIGHLIGHTS OF THE 1989 
CASE ISSUES 

The Third Report provided a sample of some of the important issues — legal, factual 
and medical — addressed by the Tribunal in 1988. The following is intended to up- 
date some of those issues and note a few new ones encountered in 1989. They are pre- 
sented in no particular order of importance. Unfortunately, it is impossible in a 
report of this size to do more than highlight a few areas. 

PENSION ASSESSMENTS 

Tribunal panels are continuing to gain experience in the difficult area of pension 
assessments. The Tribunal's general approach to pension assessments and use of the 
rating schedule remains the same. 

While the Tribunal often accepts the expert views of the Board's evaluation teams, 
the Tribunal has undertaken its own pension assessments in a number of cases where 
there was important new medical evidence, or where an aspect of the disability had 
not previously been assessed by the Board. For example, in Decision No. 172/89 (1989), 
11 W.C.A.T.R. 292, the Tribunal accepted the report of a senior psychologist which 
suggested that further tests should have been performed and awarded a pension for 
the worker's impairment of cognitive function which had not previously been 
assessed. 

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In several cases, the Tribunal has determined that a different benchmark from that ap- 
plied by the Board more accurately reflected the worker's impairment of earning 
capacity. See Decision Nos. 407/88 (1989), 12 W.C.A.T.R. 30 and 31/89 (1989), 10 
W.C.A.T.R.351. 

In other cases, the Tribunal has found that it was more appropriate to refer the pen- 
sion assessment back to the Board, and direct that it be carried out again in light of 
the Tribunal's findings. 

The compliance with the requirements of the Act of the Board's policy on compensat- 
ing multiple injuries (or entitlement to a "multiple factor" as it is sometimes called) 
has also been raised in a few cases. See Decision Nos. 831/88 (1989), 10 W.C.A.T.R. 334 
and 412/88 (June, 28, 1989)(Ont. W.C.A.T.). Another interesting case is Decision No. 
275/891 (May 23, 1989)(Ont. W.C.A.T.) which commented on assessments for white 
finger disease. 

PENSION SUPPLEMENTS 

The Tribunal continues, of course, to view the Act as taking individual circumstances 
which affect the impact of an injury on a particular worker's earning capacity into ac- 
count only through the pension supplements and older worker supplements provi- 
sions — not through the pension provisions themselves. (This will change with 
respect to permanent disabilities covered by the Bill 162 amendments.) 

It now seems to be generally accepted that the Board has at least a discretion — and 
perhaps an obligation — to refuse a vocational rehabilitation supplement where the 
supplement would not have any rehabilitative purpose. An early case to the contrary 
appears now to have been an anomaly. 

Decision No. 915 (1987), 7 W.C.A.T.R. 1 left open the question of whether this analysis 
would also apply to wage loss supplements; however, Decision No. 466/89 (1989), 11 
W.C.A.T.R. 369 held that such supplements were not intended to be permanent and 
also required a rehabilitative purpose. 

The Tribunal has had occasion to consider entitlement to vocational rehabilitation 
supplements in a variety of situations. See, for example, Decision No. 399/88 (1989), 10 
W.C.A.T.R. 205 which dealt with a worker who relocated to an area of high unem- 
ployment to live with her family. Decision No. 375/89 (1989), 11 W.C.A.T.R. 336 distin- 
guished between entitlement to a temporary supplement for vocational rehabilitation 
and to discretionary rehabilitation payments. While a worker may not jeopardize his 
entitlement to a supplement by developing his own rehabilitation programme, he 
cannot demand that the Board pay discretionary benefits toward the cost of such a 
programme. 

TRANSITIONAL SUPPLEMENT PROVISIONS IN BILL 162 

The only provisions of Bill 162 to come into force during 1989 were the transitional 
sections providing for the payment of supplements. Decision Nos. 729/89 (1989), 12 
W.C.A.T.R. 251 and 916/89 (1989), 12 W.C.A.T.R. 279 found that these transitional 
provisions do not apply retroactively. Previously enacted supplement provisions 
have no force or effect after July 26, 1989, but remain in force respecting entitlement 
to benefits accrued prior to that date. 



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EARNINGS BASE 

A number of cases have considered how the earnings base for calculating entitlement 
to benefits should be determined. For instance, should tips, bonuses, overtime, and 
employer-paid benefits (e.g., dental plans and free lunches) be included in the calcu- 
lation of the earnings base? And for purposes of the pre-accident earnings calculation 
how should pre-accident lay-off periods for which unemployment benefits have been 
paid be treated? How should supplements paid during make-work programmes be 
treated? See Decision Nos. 934/88 (1989), 11 W.C.A.T.R. 196, 994/881 (1989), 

11 W.C.A.T.R. 210, 994/88 (1989), 12 W.C.A.T.R. 61 and 712/87 (1989), 

12 W.C.A.T.R. 7. 

OCCUPATIONAL DISEASE 

Disabilities arising from exposure to chemicals or work processes continue to be an 
area of particular difficulty from an adjudicative perspective. The Tribunal's ap- 
proach is to treat such disabilities as compensable where they fall within the 
statutory definition of "industrial disease" and related provisions, or within the dis- 
ablement branch of the definition of "accident". 

Occupational disease cases are frequently complicated because medical science has 
not advanced to the point where the causes of many diseases are fully known. In 
some cases, it may be impossible for medical science to even investigate the causation 
question because the conditions which are alleged to have caused the disability no 
longer exist and cannot be duplicated. Despite this lack of scientific certainty, the 
Tribunal is still required by statute to make a determination for compensation pur- 
poses. In such cases, a determination must be made on the balance of probabilities, as 
the statute requires. For an interesting discussion of this issue, see Decision Nos. 94/87 
(1989), 11 W.C.A.T.R. 20 and 214/89 (Mar. 22, 1989)(Ont. W.C.A.T.). 

However, it has been held that where the etiology of the disease is entirely unknown, 
the statutory presumptions regarding industrial disease do not apply. In those cir- 
cumstances, the disease also cannot be treated as a compensable disablement, since 
there is no demonstrated connection to the work-place. See Decision No. 328/89 (1989), 
11W.CA.T.R.321. 

OCCUPATIONAL STRESS 

The Third Report noted the difficulties in adjudicating work-place stress claims and 
referred to the two-step inquiry suggested by the majority in Decision No. 918 (1988), 
9 W.CA.T.R. 48: 

a) Was the worker subjected to work-place stress demonstrably greater than 
that experienced by the average worker? 

b) If not, was there "clear and convincing evidence" that the ordinary and 
usual work-place stress predominated in producing the injury? 

Decision No. 536/89 (Sept. 6, 1989)(Ont. W.C.A.T.) accepted the Decision No. 918 test, 
but found that the worker's state of mind was not compensable since it was not a 
true psychological disturbance but a reflection of her anger and frustration caused by 
a labour relations problem. 

Decision No. 1018/87 (1989), 10 W.C.A.T.R. 82 reviewed Decision No. 918 in detail and 
interpreted the reference to a "preponderance factor" as a response to the difficulties 
of adjudicating gradual mental stress claims and not an intention to create a higher 
standard of proof. Decision No. 1018/87 took the view that in stress claims, as in other 



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claims, the question is whether the evidence is persuasive, on a balance of prob- 
abilities test, that the work is a significant contributing factor to the disability. Apply- 
ing this standard, the Panel found that the stress was not compensable. 

CHRONIC PAIN AND FIBROMYALGIA 

Appendix C to the Third Report reviewed the development of the Tribunal's and 
Board's treatment of chronic-pain and fibromyalgia cases in some detail. The Appen- 
dix noted that the Tribunal had not yet had occasion to consider whether the Board's 
chronic-pain policy complied with the Act and that the Board had not yet completed 
its 86n review of the Tribunal's chronic-pain cases. This remains the case as well at 
the end of this reporting period. 

The Tribunal has had occasion to consider whether it has jurisdiction to deal with 
chronic-pain claims in cases which have been treated as organic claims by the 
Board's adjudicators. Decision No. 638/891 (1989), 12 W.C.A.T.R. 221 held that the 
Tribunal has a broad jurisdiction to determine the entitlement to benefits generally 
and that it is preferable to assess entitlement on a "whole-person" basis. In that case, 
evidence of chronic-pain had been before the Hearings Officer and the Tribunal 
Panel concluded that the Hearings Officer decision must be treated as a final decision 
on the non-organic, as well as the organic, aspects. In Decision No. 693/891 (1989), 12 
W.C.A.T.R. 236 the Tribunal found that the fact that a chronic-pain case had been re- 
ferred back to the Board under Practice Direction No. 9 (1987), 7 W.C.A.T.R. 444 did 
not deprive the Tribunal of its jurisdiction to consider the whole person. The fact that 
the Board had developed a new policy which might affect the issue did not retroac- 
tively deprive the Tribunal of its jurisdiction. 

The Tribunal is not required to refer cases which, on appeal, are seen for the first time 
to involve a potential chronic-pain claim back to the Board because of any lack of jur- 
isdiction. However, there may be cases where the Tribunal, in exercising its discre- 
tion to set the issue agenda on the appeal, determines that it is more appropriate for 
the Board to determine the chronic-pain issue first. [See, for example, Decision No. 
501/89 (Nov. 27, 1989)(Ont. W.C.A.T.)] 

The implications and legitimacy of the "special confidence" concept which was 
developed in Decision No. 915 were considered in Decision No. 182 (1988), 10 
W.C.A.T.R. 1. Decision No. 915 stated that, because of the inherent difficulties in as- 
sessing the legitimacy of subjective pain complaints, it is right for adjudicators to feel 
the need for special confidence in the credibility of a chronic-pain claimant. The ma- 
jority in Decision No. 182 denied a chronic-pain claim because on the evidence it 
found it lacked this "special confidence"; however, the dissenting panel member criti- 
cized the concept. 

The Third Report also noted that Decision No. 18 (1987), 4 W.C.A.T.R. 21, which recog- 
nized fibromyalgia as a disabling condition caused by organic pathology which 
could result from an industrial accident, had not been included in the Board's 86n re- 
view of chronic-pain cases. Instead, the Board undertook a staff review of its policy 
concerning fibromyalgia. Based on the similarities between a diagnosis for fibromyal- 
gia and one for chronic pain, the staff recommended and the Board of Directors ap- 
proved the inclusion of fibromyalgia under the Board's chronic-pain policy, 
including its policy not to pay benefits prior to July 3, 1987, for chronic-pain condi- 
tions. 

In another case, Decision No. 669/87F (1989), 11 W.C.A.T.R. 54, after reviewing consid- 
erable medical evidence, the Tribunal concluded that there is a pattern of signs and 
symptoms which are sufficiently consistent and clinically distinct to recognize fibro- 
myalgia as a syndrome. It determined that it did not have to decide the appropriate- 
ness of including fibromyalgia in the Board's chronic-pain policy but that, in any 
event, the retroactivity limit in that policy was not applicable to fibromyalgia. Unlike 



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chronic pain, the Board had previously compensated fibromyalgia on a case-by-case 
basis; evidentiary problems rather than policy reasons had prevented compensation 
in fibromyalgia cases. 

The Board of Directors subsequently agreed with the Tribunal's reasoning in Decision 
No. 669/87F and made benefits for fibromyalgia fully retroactive. 

THE RELATIONSHIP WITH THE OMBUDSMAN 

The Third Report noted that at the end of its reporting period the Tribunal had re- 
ceived the first report from the Ombudsman which supported a complaint. The Om- 
budsman recommended that the Tribunal reconsider a part of Decision No. 95 (1986), 
2 W.CA.T.R. 61. 

The Tribunal Chairman referred the Ombudsman's report to a panel, with the re- 
quest that the panel determine whether: 

a) the fact that the Ombudsman had issued a report was in and of itself suffi- 
cient reason for the Tribunal to conclude that it was advisable to re-open a 
decision and embark on a reconsideration of that decision and 

b) if not, whether the content of this report provided sufficient reason to re- 
open this decision for the purpose of considering whether or not it should 
be changed in any particular. If the answer to either of the questions was 
yes, then that Panel was also to conduct the reconsideration of the case. 

The Office of the Ombudsman was invited to participate in the hearings on these is- 
sues, but it declined to do so, as it did not consider itself a party to the Tribunal's 
process. The worker whose complaint the Ombudsman had, in part, supported, was 
represented at the hearing by a personal representative, not the Ombudsman. 

Decision No. 95R (1989), 11 W.CA.T.R. 1 determined that the Tribunal's normal two- 
step reconsideration process should apply when responding to an Ombudsman's rec- 
ommendation. The Tribunal is required by statute to determine the initial 
"threshold" question of whether it is advisable to re-open a decision for the purpose 
of reconsidering, and it cannot delegate this decision, even to the Ombudsman. The 
Tribunal is also required to provide the parties with a full opportunity for a hearing 
before the Tribunal on this threshold question as well as on the reconsideration itself. 
Since the Ombudsman is a neutral entity, even the party whose complaint has been 
supported may wish to make additional submissions on these issues, as was the case 
in Decision 95R. 

Decision No. 95R also discussed the different standards of review applied by the 
Tribunal as compared to the Ombudsman, and the different interests which each 
have. The Tribunal must consider not only the individual case but also the Tribunal's 
role in dispensing justice in a large number of cases. Therefore, the Tribunal has a 
high standard for re-opening final decisions for reconsideration. 

The Panel determined that it was not advisable to re-open Decision No. 95, since even 
at face value the factual considerations and arguments presented by the Ombudsman 
and parties did not identify a defect so potentially significant as to justify 
reconsideration. 

THE COMPENSABLE, WORK-INJURY RELATIONSHIP 

As discussed previously, Decision No. 42/89, the first Tribunal decision to address the 
final-say issue, disagreed with the Board of Directors' views concerning the defini- 
tion of "accident" and the applicability of the section 3(3) presumption clause. Deci- 
sion No. 42/89 was also a case which attempted to reconcile a number of Tribunal 



9- 



decisions which appeared to give conflicting interpretations of the presumption 
clause and, in particular, of what standard of evidence is required to rebut the pre- 
sumption of work-relatedness when the presumption applies. The Decision dealt 
with the difficult problem of how to approach the compensability issue in respect of 
a worker found dead, alone at a remote work site where the actual cause of the death 
cannot be determined. 

Issues of work-relatedness may be found addressed in various forms in numerous 
decision issued in 1989, and they are far from being finally resolved. 

The concepts of personal injury by accident in the course of employment and arising out 
of employment continued through 1989 to be particularly troublesome in the face of 
non-straightforward injury circumstances such as fights, drug abuse and the like. 

OTHER 

The Tribunal has also been concerned with a wide variety of other issues, ranging 
from the compensability of on-the-job heart attacks [e.g., Decision Nos. 10/88 (1989), 10 
W.C.A.T.R. 138, 11/89 (Mar. 7, 1989)(Ont. W.C.A.T.), and 42/89], to distinctions be- 
tween independent operators and workers [e.g., Decision Nos. 860/88 (June 20, 
1989)(Ont. W.C.A.T.) and 813/89 (1989), 12 W.C.A.T.R. 269], to the question of 
whether an accident is so remotely connected to the work-place that the worker's 
right to sue is not removed by the Act [e.g., Decision No. 701/88 (1989), 11 W.C.A.T.R. 
150]. 

During this reporting period, there have also been a number of cases dealing with is- 
sues of particular interest to employers [for example, Decision Nos. 845/88 (1989), 11 
W.C.A.T.R. 154, 94/89 (1989), 11 W.C.A.T.R. 260 and 563/87 (Jan. 6, 1989)(Ont. 
W.C.A.T.), which dealt with penalty assessments, and Decision Nos. 131/87 (1989), 10 
W.C.A.T.R. 51 and 234/89 (1989), 12 W.C.A.T.R. 181, which dealt with employer 
classifications]. 

The Tribunal has also had occasion to consider the unique nature of its role as an in- 
vestigative tribunal and to refine its practices and procedures. For example, Decision 
No. 40/87 (1989), 10 W.C.A.T.R. 33 considered limits on cross-questioning where the 
worker-witness suffered from health problems; Decision No. 1248/87R (1989), 11 
W.C.A.T.R. 103 addressed the function and legitimacy of the Tribunal's three-week 
rule for disclosing documents, and Decision Nos. 355/88 (1989), 10 W.C.A.T.R. 194 and 
580/87 (Dec. 28, 1988)(Ont. W.C.A.T.) considered the applicability of the legal doc- 
trine of issue estoppel to Tribunal proceedings. In the context of considering issues re- 
specting the re-payment of benefit overpayments, the Tribunal has also considered 
the availability under its "real merits and justice" mandate of the doctrine of innocent 
detrimental reliance. See Decision No. 182. 

JUDICIAL REVIEW ACTIVITY 

In 1989, the Appeals Tribunal was served with applications for Judicial Review re- 
garding Decisions Nos. 799/87 (Sept. 3, 1987)(Ont. W.C.A.T.) and 462/88 (Nov. 23, 
1988)(Ont. W.C.A.T.R.). Both cases were section 15 applications. In Decision No. 
799/87, the Tribunal found the worker's right of action was taken away by the Act. 
This application is still pending. In Decision No. 462/88 , the Tribunal found it did not 
have the jurisdiction to determine whether the right to bring an action in Pennsyl- 
vania was taken away by the Act. The Divisional Court heard this case on February 
7, 1990, and dismissed the application stating: 



-10- 



We are all of the view that the Appeals Tribunal did not err in concluding that the 
words "in Ontario" are necessarily implied in s.15 of the Workers' Compensation 
Act. The Appeals Tribunal carefully reviewed the issue in its reasons for decision 
and in our view decided the issue in its reasons for decision and in our view decided 
the issue correctly. There is very little we can add to that decision. 

A Judicial Review application regarding Decision No. 698L (Feb. 17, 1987)(Ont. 
W.C.A.T.), a leave decision, was heard in Divisional Court on January 13, 1989. The 
court dismissed the application stating: 

We do not think the tribunal is compelled to give leave simply because it might have 
come to a different decision. That doesn't necessarily mean there is good reason to 
doubt the correctness of the decision. 

Four other applications for Judicial Review were withdrawn by the applicant in 1989 
[Decision Nos. 510/87 (Apr. 3, 1989)(Ont. W.C.A.T.), 60/88 (Mar. 18, 1988)(Ont. 
W.C.A.T.), 198/88 (Apr. 29, 1988)(Ont. W.C.A.T.), and 199/88 (Apr. 29, 1988)(Ont. 
W.C.A.T.)]. 

In addition to these Judicial Review applications, the Appeals Tribunal was made a 
party to an application to the Supreme Court of Ontario under Rule 14 of the Rules of 
Civil Procedure regarding Decision No. 696/88 (1989), 10 W.C.A.T.R. 308. The deci- 
sion in that case is reported in Re Canada Post Corp and Canadian Union of Postal Work- 
ers et ah; Workers' Compensation Appeals Tribunal, Intervener (1989), 70 O.R. (2d) 394. 



-11- 



THE 

APPEAL 

PROCESS 



Post-hearing Processing 



Panel 



Post-hearing Co-ordinator 

Medical Liason Officer 

Tribunal Counsel 

Office 



Receipt of Appeal and 
Intake Processing 




Records 


Intake 



* 



Pre-hearing Processing 



T 



Scheduling Hearing 



I 



Hearings 



Special and Administrative Services 



Tribunal Counsel 

Pre-hearing Legal 

Workers 

Medical Liason Officer 

Case Description Writers 



Scheduling 



Panel 



Tribunal Counsel 

Pre-hearing Legal 

Workers 









Panel 


Decision Writing 
Process 












Counsel to the 

Chairman's 

Office 




i 











Panel 


Decision Release 




Information Department 







Computer Services 
Finance and Administration 
French Translation Services 
Information Department 



pa 

ibl 



(Library and Publications) 
Personnel and Human Resources 



• Reproduction and Mail Room 

• Secretarial Services 

• Statistical Services 

(Data Processing and Reports) 

• Word Processing Centre 



-12- 



THE 

TRIBUNAL 
REPORT 



VICE-CHAIRMEN, MEMBERS AND STAFF 

JLiists of Vice-Chairmen and Members, senior staff and Medical Counsellors active 
during the reporting period, as well as a record of roster changes, and resumes for 
newly appointed Vice-Chairmen and Members will all be found in Appendix B. 

THE APPEALS PROCESS 1 

RECEIPT OF APPEALS & INTAKE PROCESSING 

Records 

The Records Centre includes the mail room and copy centre. It is responsible for pro- 
viding administrative support to the Tribunal's operations. 

In 1989, the Tribunal completed a review of its records system to determine compli- 
ance with the requirements of the Freedom of Information and Protection of Privacy 
Act. The Tribunal is currently considering the recommendations that emerged from 
this review process, including computerizing the records management system, im- 
plementing increased security for personal information and storing file information 
on microfiche. 

TCO/lntake 

A major initiative was undertaken this year to integrate the Tribunal's Intake Depart- 
ment with the Tribunal Counsel Office. 

The Intake Department, in addition to handling all incoming appeal applications and 
the public's questions about appeals and about the appeals process, has been re- 
sponsible for all the Tribunal's "special section" cases. The special section cases in- 
clude Section 77 access to information cases, Section 21 employer requests for 
medical examinations, and Section 15 cases on the right to maintain civil actions for 
damages. These cases constitute approximately 30 per cent of the Tribunal's incom- 
ing appeals and often involve complex legal questions. 



This process has been represented graphically as a flow chart on the facing page. 



-13 



The decision to integrate the two departments, which were formerly separate, was 
based on a desire to provide consistent treatment for all cases as well as speedier pro- 
cessing of cases. Special section cases now receive the same treatment as other cases, 
including the creation of a case description by the case description writers, and pre- 
paration for hearing by the pre-hearing legal workers. The integration was well 
under way by the end of the reporting period. 

Incoming Caseload by Type 
for 1 989 



Post Decision Issue _^*^79S<l^^^k. 
Cases (13.3%) * jX^XXXxXxiH ^^ 

^"W999y$VV<H ^^. Special Section 

£x<Xx>cH ^ Cases (30.6%) 






Entitlement Cases (56.1%) 



*Post Decision Issue Cases include reconsideration applications, 
Ombudsman's inquiries and judicial review cases. 

PREHEARING PROCESSING 

Tribunal Counsel Office 

The streamlining of the Tribunal's internal procedures, and the adoption of the aver- 
age four-month turnaround goal for appeals in 1989, has resulted in the restructuring 
of the Tribunal Counsel Office, including the integration of the Intake Department. 
Lawyers in the Counsel office now supervise the special section cases and will con- 
tinue in this role until the process of integration is complete. 

The four-month goal requires that case descriptions be completed in all cases accord- 
ing to a standardized model and within certain time limits. The process of im- 
plementing and integrating the organizational changes that were necessary was well 
under way by the end of 1989. 

Lawyers continue to review the more complex cases to determine whether there is a 
need for additional legal research, factual information, or medical evidence. The 
Medical Liaison Officer (MLO) reviewed about 300 case descriptions in 1989 to assist 
Counsel with the question of whether additional medical information is required, 
and if it is, whether it can be obtained from the treating physician or from a Tribunal 
section 86h Assessor. 



-14- 



1989 Incoming Caseload by Type 



' Description 


1989 (12 Months) 




New Cases by Type of Appealf: 




Special section cases: 






S.860 

S.15 

S.21 

S.77 




44 

89 

66 

294 


Subtotal: 




493 


Entitlement and other cases: 






Pension 
Commutation 
Employer 
Entitlement 
and Other 




39 
35 
28 

701 


Subtotal: 




803 


Cases with no jurisdiction: 






Subtotal: 




100 



% of Total 



2.7 

55 

4.1 
18.2 

30.6 



2.4 
2.2 
1.7 

43.5 
49.8 



6.2 



Total new appeals received 



1,396 



86.7 



Post-decision issue cases: 

Judicial review 
Ombudsman's request 
Reconsideration 
application 

Subtotal 

TOTAL INCOMING CASES 

f Based on the date of receipt ot WCB files. 



2 


0.1 


110 


6.8 


103 


6.4 


215 


13.3 


1,611 


100.0 



SCHEDULING OF HEARINGS 

Beginning in January 1989, the Scheduling Department, under the supervision of the 
Appeals Administrator, moved to a system that includes: 

a) Scheduling cases immediately on completion of the case description so that 
even cases requiring additional pre-hearing work receive a hearing date 
and become "date driven". 

b) Scheduling cases according to a "modified" consent system, so that cases are 
scheduled as much as possible in accordance with the parties' convenience 
but in any event within a certain time period. If the parties cannot agree on 

a date, the cases are scheduled at a time convenient to the appellant. 



15 



Representation Profile for Decisions 
Released in 1989 

Employer 



Type of Representation 


Number of Cases 


Percentage 


Claims Department 


18 


2 


Consultant 


88 


7 


Company Personnel 


186 


16 


Office of the Employer Adviser 


60 


5 


Lawyer 


211 


18 


Other 


123 


10 


No Representation 


495 


42 


Total: 


1,181 


100 


Worker 






Type of Representation 


Number of Cases 


Percentage 


Consultant 


102 


9 


Lawyer 


246 


21 


Member of Provincial Parliament 


32 


3 


Office of the Worker Adviser 


341 


29 


Union 


201 


17 


Other 


58 


5 


No Representation 


201 


17 



Total: 



1,181 



100 



The reorganization arising from the move to the four-month average turnaround 
goal generated a one-time "backlog" of cases in scheduling. In June 1989, there were 
525 cases in scheduling; however, by the end of December 1989, that number had 
been reduced to 328 cases. 

In 1989, about 50 per cent of the requests for hearings were for locations outside of 
Toronto. The waiting time for hearings in out-of-Toronto locations is two to three 
months longer than for Toronto hearings. In 1989, the Scheduling Department began 
to address this problem by bringing parties and their representatives to Toronto, if 
they agreed, and by scheduling additional hearings in certain locations. However, at 
the end of the reporting period, parties outside Toronto still waited longer for a hear- 
ing. Because of the projected Bill 162 caseload implications, the Tribunal is planning 
to add additional full-time panels, and it is expected that this development will help 
with the out-of-Toronto caseload. 

The Tribunal has continued to schedule full- and part-time Panels to hear cases. Part- 
time Members participated in approximately 30 per cent of the cases in the reporting 
period. 

Pre-hearing legal workers routinely contact the parties prior to each hearing to en- 
sure that all materials required for the hearing have been provided and that the par- 
ties are ready to proceed. This contact has proved invaluable to the smooth running 
of the hearing process. 

HEARINGS 

The Tribunal scheduled 1,360 hearings in 1989; 1,061 of those cases had an oral hear- 
ing and 102 were considered on written submissions. The continuing strict "no ad- 
journment" policy meant that only 2.3 per cent of cases were adjourned pre-hearing; 
a further small number were settled or withdrawn after being scheduled and prior to 
the hearing; 6.5 per cent were adjourned at the hearing. 



16 



The Tribunal Counsel Office lawyers attended hearings in about ten per cent of the 
cases. Generally, their in-hearing role was to examine expert medical witnesses and 
to assist the Panels with the legal questions in the more complex cases or in those 
cases that raised novel issues. 

The increasing requests for hearings outside Toronto have been noted above. The 
problem this presents for expeditious processing of cases is not easily resolved. 
Often, there are only one or two worker representatives (usually from the Office of 
the Worker Adviser) available for workers in regions outside Toronto, so the answer 
is not simply to schedule more hearings in those locations — the representatives 
would be over-burdened. The strategy of inviting parties and their representatives to 
Toronto (and paying their expenses) is also only of limited advantage: again, the rep- 
resentatives are not always available to spend several days away from their offices. 
Also, OWA representatives handle the WCB hearings as well as WCAT hearings and 
have a heavy caseload in their own locations. 

The Tribunal has taken some steps to provide parties outside Toronto with speedier 
access to hearings — in appropriate cases we bring parties and their representatives 
to Toronto, paying the expenses of the parties and their representatives; in 1989 we 
scheduled additional trips to some locations; and we have arranged conference-call 
hearings in straightforward cases, including those under Section 21 of the Act. The 
Tribunal will continue to explore ways of providing better service in this area in 1990. 

The Tribunal instituted a "Motions Day" in 1988 and 1989 to provide a speedy 
process for certain cases under sections 21 and 77 of the Act which are "inter- 
locutory" or preliminary in nature. These cases are scheduled on a date fixed by the 
Tribunal before a Panel which hears three or four similar cases on the same day. 
Parties have a fixed time to present their case, and Panels may deliver the decision 
orally. 



Disposition of Cases in 1989 

Monthly Increments 

t Jan. Feb. Mar. Apr May Jun. Jul Aug Sept Oct Nov. Dec. Total 

New cases received 131 141 146 119 163 142 124 129 173 114 126 104 1,611 



Cases disposed of: 




























• Settled 


4 


2 


2 





1 


3 


2 


6 


5 


3 


1 


2 


31 


• No Jurisdiction 


6 


9 


6 


2 


10 


13 


6 


7 


12 


8 


15 


15 


109 


• Withdrawn 


25 


11 


38 


35 


34 


38 


28 


34 


33 


34 


24 


33 


367 


• Cases closed due to inactivity 


21 


28 


11 


39 


21 


14 


17 


8 


10 


11 


15 


21 


216 


• Cases with decisions issued 


78 


109 


130 


104 


94 


118 


86 


70 


123 


70 


101 


100 


1,183 


• Disposition of Post Decision casesf 


7 


17 


13 


16 


12 


9 


16 


18 


24 


5 


10 


15 


162 


Total Cases Disposed 


141 


176 


200 


196 


172 


195 


155 


143 


207 


131 


166 


186 


2,068 



Notes: 

t Columns show monthly additions only. 

X These are dispositions of Reconsideration Applications and Ombudsman's Requests 



17 



By the end of the reporting period, the Tribunal had also moved towards handling 
section 77 cases almost exclusively by way of written application. The parties prefer 
it, the process is faster than an oral hearing, and oral hearings are awkward when 
only one party has the disputed material. 

We anticipate that with the integration of Intake and the Tribunal Counsel Office the 
trend to more expeditious handling of cases will accelerate in 1990. 

French-Language Hearings 

The Tribunal has two Panels that can conduct hearings in French. In 1989, the 
Tribunal held seven French hearings. In these cases, decisions are released in French, 
but an English version is available on request. The Tribunal now has a full-time 
French translator on staff who assists with the translation of documents for French 
hearings. 



Comparative Caseload Statistics 



As at 31-Dec-1988 As at 31-Dec-1989 

Cases at pre-hearing stage :f 1,510 1,134 



Post-hearing cases: 

• Recessed 

• Complete but on hold 

• Ready to write decision 


43 
101 
270 


Total cases at post-hearing stage: 


414 


TOTAL CASELOAD 


1,924 



65 
138 
234 

437 
1,571 



f This figure includes the pension-chronic pain cases which are on hold and post-decision issue cases. 

Pension-chronic pain cases 269 229 

Post Decision Issue Cases 129 147 



TOTAL 398 376 



POST-HEARING PROCESSING 

About 20 per cent of the cases heard in 1989 required additional evidence, post-hear- 
ing. In those cases, Panels have found there is insufficient medical evidence to deter- 
mine an issue, or that other kinds of information are required before a decision can 
be reached. There are also cases where it becomes apparent to the Panel, post-hear- 
ing, that further submissions from the parties or the Board are necessary before the 
decision can be fairly made. 



18 



The post-hearing co-ordinator in the Tribunal Counsel Office obtains the evidence re- 
quired on the Panel's instructions or co-ordinates the submissions. In 1989, the co- 
ordinator made greater use of outside investigators in obtaining information and 
consequently the time taken in the post-hearing process was shortened considerably. 

The post-hearing additional evidence is, of course, obtained after notice to the parties 
and with the parties being given full opportunity to respond to such evidence. 

In 1989, there were 154 Medical Assessors who had been appointed as Order-In- 
Council appointments under Section 86h of the Act. The increased number of Asses- 
sors meant that Panels were able to obtain medical information post-hearing more 
quickly than before. 

DECISION WRITING 

The Office of the Counsel to the Chairman continued to review decisions in draft 
form. The Counsel to the Chairman's role has been described in earlier Annual 
Reports. In 1989, one additional full-time Counsel and one part-time Counsel were 
added, bringing the total to four. Counsel's role was expanded to provide increased 
research assistance to Panels, in addition to draft-decision review. 

Beginning in January 1989, Panels agreed to attempt to release decisions, on average, 
within six weeks of the hearing date. Exceptions included the more complex cases or 
cases requiring additional evidence or submissions post-hearing. In 1989, the 
Tribunal released 1,181 decisions. The average release time for all decisions (from the 
point where they were ready to write to the release date) was 7.5 weeks. This repre- 
sents a three- week improvement over the 1988 average. If the cases are broken down 
by type, special section cases are released on average within 4.8 weeks, following a 
hearing. Full-time Vice-Chairmen released their decisions in 1989 cases within 5.2 
weeks on average. This represents a 27-per-cent improvement over 1988, and is well 
within the six-week average goal for the decision-writing process. 

DECISION RELEASE 

During the reporting year, the Tribunal implemented a new system of decision re- 
lease. Decisions are now released through the Information Department within 24 
hours of the Panel issuing the decision. 

INFORMATION DEPARTMENT 

LIBRARY 

The Library provides reference and research services to Tribunal staff and the public. 
Reference questions are answered utilizing in-house computer databases and exter- 
nal databases, such as Dialog, QL Systems, CAN /LA Wand Westlaw. 

In order to meet the increasing requests for service by the public, the Library has es- 
tablished a readily identifiable central reference desk. Improved integration of the In- 
formation Department now allows Library staff to draw on the support of 
Publications lawyers when answering more legally complex queries. 

The Library staff has trained other Tribunal personnel in the use of computer-as- 
sisted research on the Tribunal's own in-house database. Emphasis has shifted to en- 
couraging training in the use of WCAT ONLINE, a far more powerful retrieval 
system which permits sophisticated searches of the full text of all Tribunal decisions. 



-19- 



PUBLICATIONS 

The Publications department publishes materials designed to facilitate research of 
Tribunal decisions and to increase awareness of Tribunal processes. As of the end of 
the reporting period plans for a major restructuring of the Tribunal's publications 
have been completed. The new system will be implemented early in 1990. It features 
a new publication, the Decision Digest Service, which will replace the Numerical Index 
of Decisions. 

The currency of the publications was much improved over the reporting period. Deci- 
sions are currently being summarized within a week of their release. Once the Deci- 
sion Digest Service is in operation, the Decision Summaries, Keyword Index and Annotated 
Statute will be updated monthly rather than quarterly. Clearance of the backlog of 
cases to be published in the WCAT Reporter has also made that publication more cur- 
rent. These improvements have rendered the Decision Subscription Service redundant. 
It will be discontinued at the end of 1989. 

Some new publications were made available in 1989. The Keyword Guide helps users 
to identify all the keyword terms that are potentially relevant to their searches of 
Tribunal decisions (this will be especially helpful considering the revisions to the Key- 
word Index that will be necessitated by the proclamation of Bill 162). Researching Work- 
ers' Compensation Appeals Tribunal Decisions describes the various Tribunal 
publications and databases and explains how to use the publications. A Straightfor- 
ward Guide to the Workers' Compensation Appeals Tribunal is a plain language explana- 
tion of the Tribunal's function and procedures. 

Plans are underway to introduce a Tribunal newsletter (WCAT In Focus). It will pro- 
vide the Tribunal with the capacity to routinely communicate with its constituencies 
in a timely and efficient manner. 

The following publications are available to assist in the research of Tribunal 
decisions: 



• • Keyword Index 

• • Section 15 Index 

• Master List • Keyword Guide. 

Other publications available are: 



• 



• 



Workers' Compensation Appeals 

• Annual Report . 

Researching Workers' 
Compensation Appeals Tribunal 
Decisions 



PAY EQUITY 



The Pay Equity Act, which came into force on January 1, 1988, requires employers in 
the public sector to post a Pay Equity Plan by January 1, 1990. The Tribunal decided 
that it was reasonable for it to follow the Ontario Public Service pay equity plan for 
non-union (called "management and excluded") employees when that plan became 
available. 



-20- 



The Tribunal notified employees of the decision in December 1989. The plan was 
posted early in 1990 and will result in approximately 72 Tribunal employees receiv- 
ing wage adjustments in 1990 to meet the Pay Equity Act. 

The Tribunal's decision to follow the OPS plan allows the Tribunal to implement the 
intent and the spirit of the pay equity legislation by providing us with "male com- 
paritors" for the female job classes. 

FINANCIAL MATTERS 

As we present this Annual Report, the Statement of Expenditure for the year ended 
December 31, 1989, has not yet been subject to audit. 

The Appeals Tribunal is currently undergoing an internal audit by the Audit Depart- 
ment of the Ministry of Labour. The external auditors who performed an audit of the 
Statement of Expenditures in 1988 will again be invited to perform an audit of the 
Statement of Expenditures for the year ended December 31, 1989. 



-21- 



Statement of Expenditures 

As at December 31st, 1989 



1989 Budget 


1989 Actual 


4,338.0 


4,258.0 


36.0 


54.2 


298.8 


193.7 


40.0 


4.5 


35.0 


145.8 



Salaries and Wages 

1310 Salaries & Wages - Regular 
1320 Salaries & Wages - Overtime 
1325 Salaries & Wages - Contract 
1510 Temporary Help - Go Temp. 
1520 Temp. Help - Outside Agencies 

Total Salaries and Wages 4,747.8 4,656.3 

Employee Benefits 

2110 Canada Pension Plan 0.0 

2130 Unemployment Insurance 0.0 

2220 Pub. Ser. Superannuation Fund 

2230 P.S.S.F. Adjustment Fund 0.0 

2310 Ontario Health Insurance Plan 0.0 

2320 Suppl. Health & Hospital Plan 0.0 

2330 Long-term Income Protection 0.0 

2340 Group Life Insurance 0.0 

2350 Dental Plan 0.0 

2410 Workers' Compensation 0.0 

2520 Maternity Supp. Benefit All. 0.0 

2990 Benefits Transfer 0.0 



56.1 


81.7 


134.8 


28.3 


49.6 


25.1 


20.0 


8.1 


24.1 


0.1 


18.7 


1.2 



Total Employee Benefits 740.2 447.8 

Transportation & Communication 

3110 Courier/Other Delivery Charges 30.o 32.8 

3111 Long Distance Charges 15 16.9 

3112 Bell Tel. - Service, Equipment 50 o 68.7 
3210 Postage q q 24^3 
3610 Travel - Accommodation & Food 1137 70.o 
3620 Travel - Air 49 8 
3630 Travel - Rail 0^0 24 
3640 Travel - Road 0^0 26.9 
3660 Travel - Conferences, Seminars 25.0 18.9 
3680 Travel - Attendance (Hearings) 35 57 6 
3690 Travel - Prof. & Pub. Outreach 10 41 

3720 Travel - Other 10 4 8 

3721 Travel - PT Vice Chair & Reps. 57 q 40 1 



Total Transportation & Communication 396.7 417.3 



-22- 



Services 1989 Budget 1989 Actual 

0.2 

12.5 

13.1 

0.8 

0.0 

91.6 

1,011.4 

22.6 

0.0 

0.0 

0.0 

32.8 

0.3 

27.6 

5.7 

377.7 

94.7 

37.7 

117.1 

19.1 

145.8 

132.8 

0.0 

172.2 

148.2 

48.8 

44.3 

38.9 

38.0 

0.0 

Total Services 2-699.0 2,633.9 

Supplies & Equipment 

5090 Projectors, Cameras, Screens 0.0 0.0 

5110 Computer Equip, incl. Software o.O 0.2 

5120 Office Furniture & Equipment 30.0 2.3 

5130 Office Machines 0.0 0.0 

5710 Office Supplies 100.0 139.6 

5720 Books, Publications, Reports 50.0 51.5 

Total Supplies & Equipment 180.0 193.6 

Total Operating Expenditures 8,763.7 8,348.9 

Capital Expenditures 100.0 148.5 

Total Expenditures 8,863.7 8,497.4 



4124 External Education & Training 


5.0 


4130 Advertising - Employment 


10.0 


4210 Rentals - Computer Equipment 


0.0 


4220 Rentals - Office Equipment 


10.0 


4230 Rentals - Office Furniture 


1.0 


4240 Rentals - Photocopying 


130.0 


4260 Rentals - Office Space 


800.0 


4261 Rentals - Hearing Rooms 


20.0 


4270 Rentals - Other 


1.0 


4310 Data Process Service 


10.0 


4320 Insurance 


0.0 


4340 Receptions - Hospitality 


27.0 


4341 Receptions - Rentals 


1.0 


4350 Witness Fees 


30.0 


4351 Process Services - Subpoenas 


7.0 


4360 Per Diem Allow.-PT VC & Reps. 


512.0 


4410 Consultants - Mgt. Services 


70.0 


4420 Consultant - System Development 


0.0 


4430 Court Reporting Services 


125.0 


4431 Consultants - Legal Services 


50.0 


4435 Transcription 


125.0 


4440 Med. Fee - Per Diem/Retainer/Rep 


225.0 


4460 Research Services 


0.0 


4470 Print - Dec./Newsletters/Pamphlets 


210.0 


4520 Repair/Main. - Furnit./Off. Equip. 


100.0 


4710 Other - incl. Membership Fees 


30.0 


471 1 Translation & Interpret. Ser. 


60.0 


4712 Staff Development - Course Fees 


50.0 


4713 French Translation Services 


90.0 


4714 Other French Costs 


0.0 



-23- 



APPENDIX A 



STATEMENT OF MISSION, GOALS AND OBJECTIVES 
THE MISSION 



I 



n its most fundamental terms, the Tribunal's mission is to perform appropriately 
the duties assigned to it by the Workers' Compensation Act. 

These duties are both explicit and implicit. The explicit assignments define what the 
Tribunal must do and are, generally speaking, clear. They need not be repeated here. 

The implicit obligations identify the manner of the Tribunal's operations. By defini- 
tion, the nature of those obligations is subject to interpretation and debate, and it is 
important that the Tribunal's perceptions in that respect be known. 

The implicit statutory obligations as the Tribunal understands them may be usefully 
described in the following terms. 

1. The Tribunal must be competent, unbiased and fair-minded. 

2. The Tribunal must be independent. 

The obligation to be independent has three essential facets: 

(a) The maintenance of an arms-length, independent relationship with the 
Workers' Compensation Board. 

(b) A commitment by the chairman, vice-chairs and members to not being inap- 
propriately influenced by the popular views of workers or employers. 

(c) A commitment by the chairman, vice-chairs and members to being unde- 
terred by the possibility of government disapproval. 

3. The Tribunal must utilize an appropriate adjudication process. To be appropriate, 
the Tribunal believes the process must generally conform with the following basic 
concepts: 

(a) The process must be recognized as not being an "adversarial" process as 
that concept is generally understood in a common-law context. 

(Unlike a court, the Tribunal is not engaged in resolving a contest between private 
parties. Appeals to the Tribunal represent a stage in the workers' compensation sys- 
tem's investigation of the statutory rights and benefits flowing from an industrial in- 
jury. 

It is a stage of the system's process that is invoked on the initiative of a worker or em- 
ployer but in this stage, as in earlier stages of the process, it is the system and not the 
worker or the employer which has the burden of establishing what the Act does or 
does not provide with respect to any reported accident. 



-24- 



The fact that it is the system which has the primary responsibility in this respect is 
reflected in the Board's and the Tribunal's explicit investigative mandates and their 
respective statutory obligations to decide cases on the basis of their "real merits and 
justice". 

In legal terminology the process may be characterized as an "inquisitorial" as op- 
posed to an "adversarial" process. 

Despite the non-adversarial or inquisitorial nature of the process, it is a fact that the 
Tribunal's hearings normally take much the same form as do hearings in a typical 
adversarial process. To the uninitiated, the use of what is essentially an adversarial 
hearing format is confusing as to the fundamental nature of the Tribunal's process. In 
fact, however, the adversarial format merely reflects the Tribunal's tacit recognition 
that the participation of the parties in that manner will meet expectations in that re- 
gard and will, as well, be usually both the most effective and the most satisfying way 
for parties to, in fact, contribute to the Tribunal's search for the real merits and jus- 
tice. 

The Tribunal's commitment, in a non-adversarial process, to an essentially adversar- 
ial hearing format is also bolstered by its appreciation of the Canadian legal system's 
concept of what constitutes a "hearing". The legal system's understanding of the 
principles of natural justice that apply where there is, as there is here, a right to a 
hearing, are such that even in a non-adversarial process the style of hearing would 
not in law be allowed to stray far from the basic adversarial format.) 

(b) The non-adversarial nature of the process in which the Tribunal is engaged 
evokes the following three, particularly significant special process impera- 
tives. 

(i) The Tribunal's hearing panels have a responsibility to take such 
steps as they may find necessary to satisfy themselves that in any 
particular case they have such reasonably available evidence as they 
require to be confident as to the actual merits and justice in that case. 

(ii) The issue agenda in any case must ultimately be determined by the 
hearing panels and not dictated by the parties. 

(iii) The manner of conducting a hearing, while usually to be governed 
by rules and format of a standard nature, must be adaptable to the 
special hearing needs of any particular case as the hearing panel in 
that case may consider necessary or appropriate. Any such adapta- 
tions must, however, be consistent with a fair hearing and reflect 
proper regard for the integrity of general Tribunal rules and proce- 
dures that are conducive to effective and fair process from an overall 
perspective. 

(c) The adjudication process must be effective and fair from the parties' perspec- 
tive. 

It must allow the parties timely knowledge of the issues, a fair opportunity to chal- 
lenge or add to evidence and /or to provide their own evidence, and a fair opportu- 
nity to advocate their views and to argue against opposing views. 

(d) The process must also be effective from the perspective of the Tribunal. 

It must provide the Tribunal's panels with the evidence, the means of evaluating the 
evidence, and the understanding of the issues, which will permit them to decide with 
confidence on the real merits and justice of the case. 



-25- 



(e) The process should not be more complicated, regulated, or formal (and, 
thus, not more intimidating to lay participants) than the requirements of ef- 
fectiveness and fairness and the needs of reasonable efficiency dictate. 

(f) In the post-hearing phase, the decision-making process must provide full 
opportunity for effective tripartite decision-making and for the careful 
development of appropriate decisions. 

To be appropriate, decisions must be written and fully-reasoned. They must conform 
to the rule of law and meet reasonable, general standards of decision quality. Appli- 
cable law must be given its due effect and the principles adopted in other Appeals 
Tribunal decisions must be shown appropriate deference. The goal of achieving like 
results in like fact situations must be sensibly pursued. 

4. The process for dealing with applications, as distinguished from appeals, while 
conforming generally with the foregoing, must be subject to such variations as the 
special statutory provisions governing each of the various applications may antici- 
pate. 

5. The Tribunal must hold hearings and reach decisions in as timely a fashion as is 
reasonably possible given the foregoing process obligations. 

6. The Tribunal must make all its decisions readily accessible to the public. 

7. The Tribunal's services must be reasonably accessible in both the French and 
English languages. 

GOALS 

In pursuing its mission, the Tribunal has adopted the following specific goals. 

1. Achieving a total case turnaround time from notice of appeal or application to final 
disposition that averages four months, and in individual cases, unless they are of un- 
usual complexity or difficulty, does not exceed six months. 

2. Providing a system which can, so far as is reasonably possible, meet the various 
implicit statutory imperatives regardless of the experience or capabilities in a particu- 
lar case of the worker's or employer's representative, or the absence from the process 
of any party or representative. 

3. Maintaining at all points of contact between the Tribunal and workers and employ- 
ers and their representatives a welcoming, empathetic, non-intimidating and 
constructive professional environment — an environment grounded in implicit re- 
spect on the part of all Tribunal staff and members for the goals and motives of work- 
ers and employers involved in the Tribunal's processes and for the importance of the 
Tribunal's work on their behalf. 

4. Maintaining a working environment for Tribunal staff that provides both challeng- 
ing work and suitable opportunities for personal recognition, development and ad- 
vancement, in an atmosphere of mutual respect. 

5. Maintaining at all times a sufficient complement of qualified, competent, trained 
and committed vice-chairs and members. 

6. Maintaining at all times a sufficient roster of qualified and committed medical as- 
sessors. 



-26- 



7. Maintaining at all times a sufficient complement of qualified, competent, trained 
and committed administrative and professional staff. 

8. Providing the physical facilities, equipment and administrative support services 
necessary for the vice-chairs, members and staff to perform their responsibilities effi- 
ciently and in a manner which is conducive to job satisfaction and consistent with 
professional expectations. 

9. Within such restrictions as may be implicit in the chairman's statutory obligation to 
take as his or her guidelines in the establishment of job classifications, salaries and 
benefits the administrative policies of the Government, compensating staff fairly and 
competitively relative to their responsibilities and the nature of their work. 

10. Maintaining a constructive and appropriate working relationship with the medi- 
cal profession and its members, generally, and with the Tribunal's medical assessors, 
in particular. 

11. Maintaining a constructive and appropriate working relationship with the Board 
and its staff and with the Board's board of directors. 

12. Maintaining a constructive and appropriate working relationship with the Minis- 
ter and Ministry of Labour and with such other components of the government struc- 
ture with which the Tribunal has dealings from time to time. 

13. Providing the public and, in particular, workers and employers and their respec- 
tive communities and representatives with such information about the Appeals 
Tribunal and its operations as is necessary for the effective utilization of the 
Tribunal's services. 

COMMITMENTS 

In the performance of the Tribunal's Mission and in the pursuit of its Goals, the 
Tribunal has recognized a number of matters to which it is effectively committed. 

1. The Tribunal is committed to keeping the investigative and pre-hearing prepara- 
tion activities of the Tribunal separate from its decision-making activities. 

This is accomplished by means of a permanent department of full-time professional 
staff referred to as the Tribunal Counsel Office (the TCO). TCO's assignment in this 
regard is to perform the Tribunal's investigative and pre-hearing preparation work. 
This work is to be performed in accordance with general standing instructions of the 
Tribunal. In individual cases where pre-hearing investigation or preparation require- 
ments appear to exceed such standing instructions, TCO will act in accordance with 
special instructions from Tribunal panels — panels whose members are not there- 
after permitted to participate in the hearing and deciding of such cases. 

2. The Tribunal is committed to Tribunal-monitoring, at the pre-hearing stage, of the 
identification of issues and the sufficiency of evidence. 

As part of the commitment to separation of pre-hearing investigation and prepara- 
tion activity from decision-making activity, this monitoring is normally carried out 
by the TCO pursuant to Tribunal instructions delivered in the manner described 
above. 

(This commitment does not preclude variable strategies concerning the degree of pre- 
hearing monitoring and the amount of TCO initiative in the pre-hearing preparation, 
with respect to different categories of cases. It also contemplates the possibility of 
TCO not monitoring particular categories of uncomplicated cases.) 

-27- 



It is, of course, understood that the TCO's pre-hearing role does not diminish in any 
way the hearing panels' intrinsic rights and obligations in the hearing and determin- 
ing of individual cases. Hearing panels have the final say in the identification of is- 
sues and, at a mid-hearing or post-hearing phase, the right to initiate and supervise 
the development or search for additional evidence, or to obtain further legal research 
or request additional submissions. 

3. The Tribunal is committed to having the Tribunal represented by its own counsel at 
any Tribunal hearing where the Tribunal considers such representation necessary or 
useful. 

4. In its internal decision-making processes, the Tribunal is committed to the 
maintenance of a tri-partite working environment characterized by mutual respect 
and by free and frank discussions based on non-partisan, personal best judgements 
from all panel members. 

5. The Tribunal is committed to maintaining internal educational processes suitable 
for developing a Tribunal-wide, comprehensive appreciation of the nature and di- 
mensions of emerging, generic, medical, legal or procedural issues. 

6. The Tribunal is committed to the establishment and maintenance of a general 
workers' compensation information resource and library. 

This resource and library is to be a sufficient and effective source of legal, medical, 
and factual information relevant to the workers' compensation subject. It shall pro- 
vide access to information which is not conveniently assembled elsewhere, and 
which workers and employers, members of the public, professional representatives, 
and Members and staff of the Tribunal require if they are to truly understand the 
workers' compensation system and the issues which it presents, or be able to prepare 
on a fully informed basis for presenting or dealing with such issues in individual 
cases. 

This information is to be readily accessible through electronic and other means. 

7. The Tribunal is committed to the creation of a permanent, widely distributed and 
easily accessible, published record of the Tribunal's work. 

This record is to consist of the selection of Tribunal decisions best calculated to assist 
worker or employer representatives to understand, in the preparation of their cases, 
workers' compensation issues and the Tribunal's developing position on such issues. 

8. The Tribunal is committed to the review by the chairman, or by the Office of the 
Counsel to the chairman, of draft panel decisions. 

This review is conducted for the purpose of ensuring — to the extent possible given 
the overriding hearing-panel autonomy, that the Tribunal's body of decisions com- 
plies reasonably with the general hallmarks of quality which the Tribunal has recog- 
nized. 

9. The Tribunal is committed to devoting its best efforts to having Tribunal decisions 
comply reasonably with the following hallmarks of a good-quality adjudicative decis- 
ion: 

(a) It does not ignore or overlook relevant issues fairly raised by the facts. 

(b) It makes the evidence base for the panel's decisions clear. 



-28 



(c) On issues of law or on generic medical issues, it does not conflict with pre- 
vious Tribunal decisions unless the conflict is explicitly identified and the 
reasons for the disagreement with the previous decision or decisions are 
specified. 

(d) It makes the panel's reasoning clear and understandable. 

(e) It meets reasonable standards of readability. 

(0 It conforms reasonably with Tribunal standard decision formats. 

(g) From decision to decision the technical and legal terminology is consistent. 

(h) It contributes appropriately to a body of decisions which must be, as far as 
possible, internally coherent. 

(i) It does not support permanent conflicting positions on clear issues of law or 
medicine. Such conflicts may occur during periods of development on con- 
tentious issues. They cannot be a permanent feature of the Tribunal's body 
of decisions over the long term. 

(j) It conforms with applicable statutory and common law and appropriately re- 
flects the Tribunal's commitment to the rule of law. 

(k) It forms a useful part of a body of decisions which must be a reasonably ac- 
cessible and helpful resource for understanding and preparing to deal with 
the issues in new cases and for invoking effectively the important principle 
that like cases should receive like treatment. 

10. The Tribunal is committed to obtaining in each case such reasonably available 
evidence as its hearing panels require if they are to be confident as to the appropriate- 
ness of their decision on any factual or medical issue. 

11. The Tribunal is committed to holding hearings at appropriate out-of-Toronto loca- 
tions. 

The commitment in this respect is that cases originating out of Toronto should be 
heard at locations which are reasonably convenient from both the worker's and em- 
ployer's perspective. This commitment is subject to the limit of not imposing travel 
obligations on Tribunal members or administrative burdens on the Tribunal so oner- 
ous as to interfere with the effective operation of the Tribunal in other respects. 

12. The Tribunal is committed to the payment of expenses and compensation in resp- 
ect of lost wages arising from attendance at Tribunal hearings in accordance with the 
WCB's policies in that regard with respect to attendance at WCB proceedings. 

13. The Tribunal is committed to paying for medical reports which serve a reasonable 
purpose in the Tribunal's proceedings. 

14. The Tribunal is committed to being fiscally responsible in the management of its 
expenditures to the end that only moneys necessary for the performance of the 
Tribunal's mission and the accomplishment of the Tribunal's goals are, in fact, spent. 



-29 



This document reflects the Tribunal's Mission, Goals and Commitments as at least 
implicitly understood from the Tribunal's inception. Their expression in these 
particular terms was approved by the Tribunal as of October 1, 1988. 



1 The single exception is Goal No. 1. The original turnaround goal was six months. 



-30 



APPENDIX B 



VICE-CHAIRMEN AND MEMBERS ACTIVE IN 1989 



FULL-TIME 

Chairman 

Ellis, S. Ronald 

Alternate Chair 

Bradbury, Laura 

Vice-Chairmen 

Bigras, Jean Guy 
Bradbury, Laura 
Carlan, Nicolette 
Kenny, Lila Maureen 
Mclntosh-Janis, Fa ye 
Moore, John P. 
Onen, Zeynep 
Signoroni, Antonio 
Starkman, David K.L. 
Strachan, Ian J. 

Members Representative of Workers 

Cook, Brian 
Fox, Sam 
Heard, Lome 
Lebert, Raymond J. 
McCombie, Nick 
Robillard, Maurice 

Members Representative of Employers 

Apsey, Robert 
Jago, W. Douglas 
Meslin, Martin 
Nipshagen, Gerry M. 
Preston, Kenneth 
Seguin, Jacques 
Guillemette, Karen 

PART-TIME 



DATE OF FIRST APPOINTMENT 



October 1,1985 



June 1,1988 



May 14, 1986 
October 1,1985 
October 1,1985 
July 29, 1987 
May 14, 1986 
July 16, 1986 
October 1,1988 
October 1, 1985 
August 1,1988 
October 1,1985 



October 1,1985 
October 1,1985 
October 1, 1985 
June 1,1988 
October 1,1985 
March 11, 1987 



December 11, 1985 
October 1,1985 
December 11, 1985 
October 1,1988 
October 1,1985 
July 1, 1986 
May 28, 1986 



Vice-Chairmen 

Aggarwal, Arjun 
Chapnik, Sandra 
Farb, Gary 
Faubert, Marsha 
Friedmann, Karl 
Hartman, Ruth 
Lax, Joan L. 
Leitman, Marilyn 
Marafioti, Victor 
Marcotte, William A. 
Marszewski, Eva 
McGrath, Joy 
Sperdakos, Sophia 



May 14, 1986 
March 11, 1987 
March 11, 1987 
December 10, 1987 
December 17, 1987 
December 11, 1985 
May 14, 1986 
December 17, 1987 
March 11, 1987 
May 14, 1986 
May 14, 1986 
December 10, 1987 
May 14, 1986 



-31- 



Stewart, Susan L. 
Swartz, Gerald 
Torrie, Paul 
Warrian, Peter 
Wydrzynski, Christopher 



May 14, 1986 
March 11, 1987 
May 14, 1986 
May 14, 1986 
March 11, 1987 



Members Representative of Workers 

Acheson, Michelle 
Beattie, David Bert 
Byrnes, Frank 
Drennan, George 
Felice, Douglas H. 
Ferrari, Mary 
Fuhrman, Patti 
Higson, Roy 
Jackson, Faith 
Klym, Peter 
Lankin, Frances 
Rao, Forrunato 

Members Representative of Employers 

Clarke, Kenneth 
Gabinet, Mark 
Howes, Gerald K. 
Jewell, Donna Marie 
Kowalishin, Teresa A. 
Merritt, Allen S. 
Ronson, John 
Seguin, Jacques A. 
Shuel, Robert 
Sutherland, Sara 



December 11, 1985 
December 11, 1985 
May 14, 1986 
December 11, 1985 
May 14, 1986 
May 14, 1986 
May 14, 1986 
December 11, 1985 
December 11, 1985 
May 14, 1986 
December 11, 1985 
February 11, 1988 



August 1,1989 
December 17, 1987 
August 1, 1989 
December 11, 1985 
May 14,1986 
October 18, 1988 
December 11, 1985 
July 1,1986 
August 1,1989 
December 17, 1987 



The following is a list of senior staff who were employed at the Appeals Tribunal 
during the reporting period. 

Counsel to the Chairman 

Carole A. Trethewey 
Tribunal General Counsel 

Elaine Newman - to June 15, 1989 
Eleanor J. Smith - from December 1, 1989 

(Acting) General Counsel 

Janice Sandomirsky - June 16, 1989, to November 30, 1989 

General Manager 

Robert A. Whitelaw - to June 30, 1989 

Head, Information Department 

Linda Moskovits 

SENIOR STAFF CHANGES 

On June 16, 1989, Elaine Newman, the Tribunal's General Counsel resigned to take 
up a career in private practice. Janice Sandomirsky, one of the Tribunal Counsel Of- 
fice's Senior Legal Counsel, assumed the position of Acting General Counsel while 
the recruiting process was completed by an internal selection committee. Eleanor J. 
Smith was appointed the Tribunal's new General Counsel, effective December 1, 
1989. Eleanor came to the Tribunal from her position as Director of Appeals at the 
Ministry of Labour, where she was responsible for hearing and determining all ap- 



-32 



peals from Ministry of Labour decisions under the Occupational Health and Safety 
Act, and with a background of government administrative law advocacy in the 
energy field. 

Also, on June 30, 1989, Robert Whitelaw, the Tribunal's General Manager resigned to 
accept a position with the government of British Columbia. At that time, it was de- 
cided that we would not fill the vacancy but would, instead, take the opportunity to 
experiment with a more flattened management structure, with the General 
Manager's responsibilities being delegated to senior staff members. We have not, as 
yet, had enough experience to be confident that it will be sensible in the long term to 
permanently dispense with a General Manager position, and expect to be able to 
make that decision sometime towards the end of 1990. 

MEDICAL COUNSELLORS 

The Medical Counsellors have continued to assist the Counsel Office in determining 
what, if any, further medical investigation ought to be explored in order to ensure 
that Panels have enough medical information to understand the evidence before 
them in any particular case, and to understand where and why any controversies 
exist. 

The Counsellors have also continued to contribute to the Tribunal's recruitment of 
candidates for the Medical Assessor Roster. This year has seen the creation of a num- 
ber of generic discussion papers on a number of medical issues. The Counsellors 
have been of assistance, either authoring these papers, or assisting in finding appro- 
priate specialists from the Assessor Roster to do so. 

Dr. Brian Holmes (see Second Report, page 21), who previously coordinated the 
Medical Counsellors has taken a leave of absence to accept a position as Vice-Chan- 
cellor, Health Sciences for the University in the United Arab Emirates. Dr. Holmes 
was a founding Counsellor and was instrumental in assisting the Tribunal as it set up 
its medical resource bodies. 

Dr. Holmes' leadership role has been assumed by Dr. Thomas P. Morley. 

This year, Dr. Ian Macnab, Orthopaedic Surgeon, resigned for personal reasons. Dr. 
Macnab's assistance and keen interest in enhancing our understanding of or- 
thopaedic issues, especially in our first few formative years has been greatly appre- 
ciated. 

One of the Tribunal's 86h Assessors, Dr. W.R. Harris, has been performing the role of 
Orthopaedic Counsellor on an ad hoc basis. His other commitments do not permit 
him to officially assume the responsibilities of a Counsellor at this time. 

This leaves the Tribunal with seven Counsellors. 

The following is a list of the Tribunal's Medical Counsellors: 

Dr. Douglas P. Bryce Otolaryngology 

Dr. John S. Crawford Ophthalmology 

Dr. W.R. Harris Orthopaedics (Acting) 

Dr. Fred Lowy Psychiatry 

Dr. Robert L. MacMillan Internal Medicine 

Dr. Thomas P. Morley Neurology 

Dr. Neil Waiters General Surgery 



33 



ASSESSORS 

As reported in the Second Report, a second expanded list of Assessors was appointed 
on October 1988. This brought the total of medical assessors throughout the province 
to 154 - now less nine (mainly through retirement from practice). There are currently 
14 assessor nominations in process, and their appointments are anticipated in the 
near future. 

VICE-CHAIRMEN AND MEMBERS — RE-APPOINTMENTS 

In 1989, the following full- and part-time Vice-Chairmen and Members were 
re-appointed to the Appeals Tribunal for the terms indicated below. 



NAME 

FULL-TIME 

Vice-Chairmen 

Bradbury, Laura 1 
Mclntosh-Janis, Faye 

Members Representative of Employers 

Guillemette, Karen 
Nipshagen, Gerry 
Seguin, Jacques 

Cook, Brian 

PART-TIME 

Vice-Chairmen 

Lax, Joan 
Marcotte, William 
Sperdakos, Sophia 
Stewart, Susan 

Members Representative of Employers 

Kowalishin, Teresa 



DATE OF RE-APPOINTMENT AND TERM ( IN YEARS) 



October 1 
May 14 



May 14 
June 15 
Julyl 

October 1 



6 mos. full-time; 
2.5 years part-time 

3 



May 14 


2 


May 14 


2 


May 14 


3 


May 14 


3 



May 14 



Members Representative of Workers 






Felice, Douglas 
Ferrari, Mary 
Fuhrman, Patti 
Klym, Peter 


May 14 
May 14 
May 14 
May 14 


3 
3 
3 
3 



In addition to her duties as a Vice-Chairman at the Appeals Tribunal, Laura Bradbury is 
continuing in her management position as Alternate Chair. 

Mr. Nipshagen was first appointed to the Appeals Tribunal as a part-time Member 
representative of employers. He was appointed as a full-time Member in June to fill the 
vacancy created by the resignation of Karen Guillemette. 



-34 



VICE-CHAIRMEN AND MEMBERS — APPOINTMENTS EXPIRED 
AND RESIGNATIONS 

The following is a list of members who resigned or whose appointments expired 
during the reporting period. 

Arjun Aggarwal, Vice-Chairman (part-time) 

Frank Byrnes, Tribunal Member representative of workers (part-time) 

Karen Guillemette, Tribunal Member representative of employers (full-time) 

Eva Marszewski, Vice-Chairman (part-time) 

Allen S. Merritt, Tribunal Member representative of Employers (part-time) 

Paul Torrie, Vice-Chairman (part-time) 

Peter Warrian, Vice-Chairman (part-time) 

VICE-CHAIRMEN AND MEMBERS — RESUMES 

NEW APPOINTMENTS 

Kenneth Clarke (Part-time Employer Member) 

Mr. Clarke, a human resources consultant with his own consulting firm (dealing in 
non-workers'-compensation-related matters), spent 20 years in the food business as 
the Director of Human Resources at Thomas J. Lipton, Inc. In this position he was re- 
sponsible for personnel and industrial relations matters. He is currently a member of 
the Government Affairs Advisory Committee of the Personnel Association of Ontario. 

Gerald K. Howes (Part-time Employer Member) 

Prior to his part-time appointment, Mr. Howes was employed by General Motors for 
32 years. His position when retired was that of Workers' Compensation Personnel 
Representative. In this position, he spent the greater part of the period between 1972 
and 1988 representing General Motors at all levels of workers' compensation claims 
and primary adjudication in the appeals process up to the Hearings Officer level. 

Robert Shuel (Part-time Employer Member) 

During the period between 1980 and 1989, Mr. Shuel was employed as Director and 
Secretary-Treasurer for Cuddy International Corporation. In additional to personnel 
administration, Mr. Shuel was involved in workers' compensation assessment and 
claims procedures. During this period, he was responsible for workers' compensa- 
tion and claims management for a Windsor-based construction company where he 
was project payroll and office manager. Mr. Shuel was also involved in a workers' 
compensation educational role with the Agricultural Employers Council. 

For brief resumes of the previously appointed full- and part-time Vice-Chairmen and 
Members, please refer to Appendix B of the Third Report. 



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